SECOND DIVISION

[G.R. No. 15566. September 14, 1921.]

EUTIQUIA AVERA , petitioner-appellee, vs . MARINO GARCIA, and JUAN

RODRIGUEZ, as guardian of the minors Cesar Garcia and Jose
Garcia , objectors-appellants.

Dionisio Villanueva for appellants.

Marcelino Lontok for appellee.

SYLLABUS

1. WILLS; PROBATE; NECESSITY FOR PRODUCTION OF ATTESTING

WITNESSES. — When the petition for probate of a will is contested the proponent
should introduce all three of the attesting witnesses, if alive and within reach of the
process of the court; and the execution of the will cannot be considered su ciently
proved by the testimony of only one, without satisfactory explanation of the failure to
produce the other two.
2. ID.; PLEADING AND PRACTICE; OBJECTION TO PROOF OF WILL BY
SINGLE WITNESS. — Nevertheless, in a case where the attorney for the contestants
raised no question upon this point in the court below, either at the hearing upon the
petition or in the motion to rehear, it is held that an objection to the probate of the will
on the ground that only one attesting Witness was examined by the proponent of the
will without accounting for the absence of the others, cannot be made for the rst time
in this court.
3. WILLS; SIGNATURES OF TESTATOR AND ATTESTING WITNESSES; USE OF
RIGHT MARGIN. — A will otherwise properly executed in accordance with the
requirements of existing law is not rendered invalid by the fact that the paginal
signatures of the testator and attesting witnesses appear in the right margin instead of
the left.

DECISION

STREET , J : p

In proceedings in the court below, instituted by Eutiquia Avera for probate of the
will of one Esteban Garcia, contest was made by Marino Garcia and Juan Rodriguez, the
latter in the capacity of guardian for the minors Jose Garcia and Cesar Garcia. Upon the
date appointed for the hearing, the proponent of the will introduced one of the three
attesting witnesses who testi ed — with details not necessary to be here speci ed —
that the will was executed with all necessary external formalities, and that the testator
was at the time in full possession of disposing faculties. Upon the latter point the
witness was corroborated by the person who wrote the will at the request of the
testator. Two of the attesting witnesses were not introduced, nor was their absence
accounted for by the proponent of the will.
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 When the proponent rested the attorney for the opposition introduced a single
witness whose testimony tended to show in a vague and indecisive manner that at the
time the will was made the testator was so debilitated as to be unable to comprehend
what he was about.
After the cause had been submitted for determination upon the proof thus
presented, the trial judge found that the testator at the time of the making of the will
was of sound mind and disposing memory and that the will had been properly
executed. He accordingly admitted the will to probate.
From this judgment an appeal was taken in behalf of the persons contesting the
will, and the only errors here assigned have reference to the two following points,
namely, rst, whether a will can be admitted to probate, where opposition is made,
upon the proof of a single attesting witness, without producing or accounting for the
absence of the other two; and, secondly, whether the will in question is rendered invalid
by reason of the fact that the signature of the testator and of the three attesting
witnesses are written on the right margin of each page of the will instead of the left
margin.
Upon the rst point, while it is undoubtedly true that an uncontested will may be
proved by the testimony of only one of the three attesting witnesses, nevertheless in
Cabang vs. Del nado (34 Phil., 291), this court declared after an elaborate examination
of the American and English authorities that when a contest is instituted, all of the
attesting witnesses must be examined, if alive and within reach of the process of the
court.
In the present case no explanation was made at the trial as to why all three of the
attesting witnesses were not produced, but the probable reason is found in the fact
that, although the petition for the probate of this will had been pending from December
21, 1917, until the date set for the hearing, which was April 5, 1919, no formal contest
was entered until the very day set for the hearing; and it is probable that the attorney for
the proponent, believing in good faith that probate would not be contested, repaired to
the court with only one of the three attesting witnesses at hand, and upon nding that
the will was contested, incautiously permitted the case to go to proof without asking
for a postponement of the trial in order that he might produce all the attesting
witnesses.
Although this circumstance may explain why the three witnesses were not
produced, it does not in itself supply any basis for changing the rule expounded in the
case above referred to; and were it not for a fact now to be mentioned, this court would
probably be compelled to reverse this case on the ground that the execution of the will
had not been proved by a sufficient number of attesting witnesses.
It appears, however, that this point was not raised by the appellant in the lower
court either upon the submission of the cause for determination in that court or upon
the occasion of the ling of the motion for a new trial. Accordingly it is insisted for the
appellee that this question cannot now be raised for the rst time in this court. We
believe this point is well taken, and the rst assignment of error must be declared not
to be well taken. This exact question has been decided by the Supreme Court of
California adversely to the contention of the appellant, and we see no reason why the
same rule of practice should not be observed by us. (Estate of McCarty, 58 Cal., 335,
337.)
There are at least two reasons why the appellate tribunals are disinclined to
permit certain questions to be raised for the rst time in the second instance. In the
rst place it eliminates the judicial criterion of the Court of First Instance upon the point
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 there presented and makes the appellate court in effect a court of rst instance with
reference to that point, unless the case is remanded for a new trial. In the second place,
it permits, if it does not encourage, attorneys to tri e with the administration of justice
by concealing from the trial court and from their opponent the actual point upon which
reliance is placed, while they are engaged in other discussions more simulated than
real. These considerations are, we think, decisive.
In ruling upon the point above presented we do not wish to be understood as
laying down any hard and fast rule that would prove an embarrassment to this court in
the administration of justice in the future. In one way or another we are constantly here
considering aspects of cases and applying doctrines which have escaped the attention
of all persons concerned in the litigation below; and this is necessary if this court is to
contribute the part due from it in the correct decision of the cases brought before it.
What we mean to declare is that when we believe that substantial justice has been done
in the Court of First Instance, and the point relied on for reversal in this court appears to
be one which ought properly to have been presented in that court, we will in the exercise
of a sound discretion ignore such question upon appeal; and this is the more proper
when the question relates a defect which might have been cured in the Court of First
Instance if attention had been called to it there. In the present case, if the appellant had
raised this question in the lower court, either at the hearing or upon a motion for a new
trial, that court would have had the power, and it would have been its duty, considering
the tardy institution of the contest, to have granted a new trial in order that all the
witnesses to the will might be brought into court. But instead of thus calling the error to
the attention of the court and his adversary, the point is rst raised by the appellant in
this court. We hold that this is too late.
Properly understood, the case of Cabang vs. Del nado, supra, contains nothing
inconsistent with the ruling we now make, for it appears from the opinion in that case
that the proponent of the will had obtained an order for a republication and new trial for
the avowed purpose of presenting the two additional attesting witnesses who had not
been previously examined, but nevertheless subsequently failed without any apparent
reason to take their testimony. Both parties in that case were therefore fully apprised at
the question of the number of witnesses necessary to prove the will was in issue in the
lower court.
The second point involved in this case is whether, under section 618 of the Code
of Civil Procedure, as amended by Act No. 2645, it is essential to the validity of a will in
this jurisdiction that the names of the testator and the instrumental witnesses should
be written on the left margin of each page, as required in said Act, and not upon the
right margin, as in the will now before us; and upon this we are of the opinion that the
will in question is valid. It is true that the statute says that the testator and the
instrumental witnesses shall sign their names on the left margin of each and every
page; and it is undeniable that the general doctrine is to the effect that all statutory
requirements as to the execution of wills must be fully complied with. The same
doctrine is also deducible from cases heretofore decided by this court.
Still some details at times creep into legislative enactments which are so trivial
that it would be absurd to suppose that the Legislature could have attached any
decisive importance to them. The provision to the effect that the signatures of the
testator and witnesses shall be written on the left margin of each page — rather than on
the right margin — seems to be of this character. So far as concerns the authentication
of the will, and of every part thereof, it can make no possible difference whether the
names appear on the left or no the right margin, provided they are on one or the other.
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 In Caraig vs. Tatlonghari (R. G. No. 12558, decided March 23, 1918, not reported), this
court declared a will void which was totally lacking in the signatures required to be
written on its several pages; and in the case of Re estate of Saguinsin (41 Phil., 875), a
will was likewise declared void which contained the necessary signatures on the margin
of each leaf (folio), but not in the margin of each page containing written matter.
The instrument now before us contains the necessary signatures on every page,
and the only point of deviation from the requirement of the statute is that these
signatures appear in the right margin instead of the left. By the mode of signing here
adopted every page and provision of the will is authenticated and guarded from
possible alteration in exactly the same degree that it would have been protected by
being signed in the left margin; and the resources of casuistry could be exhausted
without discovering the slightest difference between the consequences of a xing the
signatures in one margin or the other.
The same could not be said of a case like that of Estate of Saguinsin, supra,
where only the leaves, or alternate pages, were signed and not each written page; for as
observed in that case by our late lamented Chief Justice, it was possible that in the will
as there originally executed by the testatrix only the alternative pages had been used,
leaving blanks on the reverse sides, which conceivably might have been lled in
subsequently.
The controlling considerations on the point now before us were well stated in Re
will of Abangan (40 Phil., 476, 479), where the court, speaking through Mr. Justice
Avanceña, in a case where the signatures were placed at the bottom of the page and
not in the margin, said:
"The object of the solemnities surrounding the execution of wills is to close
the door against bad faith and fraud, to avoid substitution of wills and
testaments and to guarantee their truth and authenticity. Therefore the laws on
this subject should be interpreted in such a way as to attain these primordial
ends. But, on the other hand, also one must not lose sight of the fact that it is not
the object of the law to restrain and curtail the exercise of the right to make a will.
So when an interpretation already given assures such ends, any other
interpretation whatsoever, that adds nothing but demands more requisites entirely
unnecessary, useless and frustrative of the testator's last will, must be
disregarded."
In the case before us, where ingenuity could not suggest any possible prejudice
to any person, as attendant upon the actual deviation from the letter of the law, such
deviation must be considered too trivial to invalidate the instrument.
It results that the legal errors assigned are not sustainable, and the judgment
appealed from will be affirmed. It is so ordered, with costs against the appellants.
Johnson, Araullo, Avanceña and Villamor, JJ., concur.

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